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down in the course of a few days from the House of Lords-namely, the Land Transfer Bill. This is a Bill of very considerable importance, and one which has been accepted by the other side with favour in the House of Lords; and if it should be the pleasure of the House to accept it in the same spirit, I hope it may be possible to pass it into law; but I cannot insist against any considerable or protracted opposition." It is to be hoped that the Lord Chancellor will not listen to the suggestions which have been thrown out that the real property clauses should be severed from the rest of the Bill and carried this session. These clauses need not less careful and prolonged consideration than those relating to registration, and although, after they have received full criticism and discussion, it will undoubtedly be desirable that the Bill should be split into two, it would seem to be very unwise to press forward this session enactments which may have to be amended next session. The suggestion made by the Council of the Incor

The Solicitors' Journal and Reporter. porated Law Society that the Bill should be referred to a com

LONDON, JULY 9, 1887.

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THE ATTENTION of our readers should be directed to a correspondence which will be found in the appendix to the report of the Paymaster-General, the general result of which is to shew that the Commissioners of Inland Revenue have decided that the stamp on a power of attorney for the receipt of money from the PaymasterGeneral in any case not falling under the precise words of divisions (3) and (4) under the head "Letter or Power of Attorney" in the schedule to the Stamp Act of 1870 is ten shillings. It has been the practice of the Paymaster-General's department to regard for this purpose a periodical payment "out of dividends" as a payment of "dividend or interest" within (3) of the head referred to, and therefore to require a five-shilling stamp only. The authorities at Somerset House, however, have decided that such a payment is not the payment of a dividend, and that if it is a periodical payment in excess of £10 per annum, it requires a tenshilling stamp.

MR. W. H. SMITH's statement on Monday evening in the House of Commons may probably be taken as settling the fate of the Land Transfer Bill-or, at all events, of the registration part of it-this session. He said :-" There is one other measure which will come

mittee nominated by the Lord Chancellor, and composed of conveyancing counsel and solicitors, appears to afford the best means of arriving at a satisfactory result.

IT IS UNDERSTOOD that the proposed scheme for a rearrangement of the civil business at assizes has been withdrawn The judges and the Government found that the proposals would meet with most determined opposition not only from but also from the local authorities in the counties which it was the bar, who acted with unusual promptness and unanimity, proposed to deprive of civil assizes; and, as will be seen elsewhere, the Lord Chief Justice added his authority against the scheme, and also against the mode proposed for carrying it out. He seems to express an opinion that the scheme cannot legally be authorized by Order in Council-a view which, considering the wide terms of section 23 of the Judicature Act, 1875, we confess somewhat surprises us. But we think that few persons off the bench will doubt that the scheme ought not to be carried out in this way. As Lord COLERIDGE points out, there is all the difference in the in committee, and with regard to particular parts of which even the strongest Government must give way, and an Order in Council which must be accepted or rejected en bloc, and can usually be carried by the aid of a docile majority. The odd thing is that a majority of the judges, who are commonly supposed to be persons of common sense and experience of the world, should have supposed that a scheme vitally affecting the interests of powerful professional classes and of the inhabitants of thirty-four counties was a proper subject for legislation by Order in Council.

world between a Bill which can be discussed in detail and amended

THE FIRST OFFENDERS BILL has now been passed by the House of Commons and introduced in the Upper House. The preamble of the Bill recites that "it would be conducive to the public good if first offenders were, in certain cases, permitted to be at large on probation of good conduct, without suffering imprisonment, so long as they properly conduct themselves and shew an earnest desire to reform.' The Bill leaves the whole matter to the discretion of the judges by proposing that the court may, upon conviction of any first offender, direct that he shall be released on entering into a recognizance "to appear and receive judgment when called upon," and, in the meantime, to observe a number of specified conditions, or such of them as may, in the opinion of the court, be suitable. These conditions are (1) that the offender notify his residence during a period named by the court to such authority as the court may direct; (2) that he report himself once in each month to such authority; (3) that he be of good behaviour during such period; (4) " that the offender will, if required, appear before the court or some specified future court to answer privately as to his conduct"; and (5) that the offender will pay the costs of the prosecution. It is also expressly provided that the period named for supervision is not to exceed twelve months. The Bill is not a model of good drafting, but we think it is sound in principle. It turns into statute law the common law practice of discharging offenders in the less serious cases upon the terms of entering into a recognizance to come up for judgment when called upon, and all the other provisions of the Bill are so purely discretionary that,

if wisely administered, they can do little harm. It should of forty shillings, and "it shall be lawful for any constable be expressly provided, however, that the power of the court to call up a first offender for judgment should be limited in point of time, and the twelve months during which the conditions are to be observed would be a very good limit to fix. Both at common law and by the Bill the power to "call up for judgment" appears to be unlimited in point of time. It is seldom or never exercised, but none the less should it be limited. Otherwise the convicted person has the possibility of being "called up" hanging over him for life.

WE OBSERVE that, with the view of increasing the efficiency of the Preliminary Examination, certain alterations have been made, including the substitution of passages for translation at sight instead of passages from books named five months previously; the addition of algebra up to simple equations and the first four books of Euclid, and a more stringent regard to spelling and English composition. It appears that the judges to whom the altered regulations were, under the Act of Parliament (40 & 41 Vict. c. 25, s. 6), submitted for approval, objected to the addition of algebra and Euclid being treated as essential, and insisted on the candidates having the option of taking up these subjects in lieu of one of the two languages prescribed. The change in the direction of setting passages for translation from unseen authors in the language paper is a step in the right direction, as it is a wellknown fact that many candidates have, by means of cramming, passed without having even an elementary knowledge of the languages taken up. With regard to the algebra and Euclid we venture to think that it would have been much better to make these subjects essential. The examination has always been a very elementary one, but this alteration will lower rather than increase its standard. The Council have during the past year abolished the old classification of the subjects for the Final Examination into essential and non-essential subjects, considering that candidates should be examined in all branches of the law usually transacted by solicitors. We have already given full particulars of this alteration. The principal feature will be that no one subject will be more essential than another, and that a candidate will have to obtain a fixed minimum of marks, but it does not matter in which of the subjects he obtains the necessary marks.

A FULL INQUIRY having been promised in Miss Cass's case, there is little to be said except that the vote of censure in which the series of fiascos in that case culminated will be useful as affirming the doctrine that a Home Secretary is responsible to the House of Commons for the administration of justice, and especially responsible for the investigation of complaints of misconduct on the part of the metropolitan police. Mr. MATTHEWS' action in the matter certainly shewed an inadequate appreciation of his duties in this respect and an unlawyer-like readiness in the first instance to pronounce judgment on apparently inadequate materials. As regards the conduct and remarks of the magistrate, all the Home Secretary could do would be to draw the attention of the Lord Chancellor to the matter, and it is not clear what course, beyond censure, could be taken in case the Lord Chancellor came to the conclusion that the magistrate had been guilty of serious misconduct. There does not appear to be any explicit power to dismiss a metropolitan police magistrate given by 2 & 3 Vict. c. 71, but possibly the general power in the Crown to discharge any justice of the peace by writ under the Great Seal (Burn's Justice, 30th ed., 3rd vol. by Cave, p. 123), might cover the case. As regards the policeman, there was, of course, power on the part of the Home Secretary to direct the Commissioners of Police to inquire into his conduct.

THE POWER of police constables to arrest women for solicitation is derived from the Metropolitan Police Act of 1839 (2 & 3 Vict. c. 47, s. 54). By this section every person "being a common prostitute or night-walker, loitering or being in any thoroughfare or public place for the purpose of prostitution or solicitation to the annoyance of the inhabitants or passengers" is liable to a penalty

belonging to the Metropolitan Police Force to take into custody, without warrant, any person who shall commit any such offence within view of any such constable." It is absolutely necessary, for this section to operate, that the offence should be committed within view of the constable (see Simmons v. Millingen, 2 C. B. 524; Justice v. Gosling, 12 C. B. 39), and if it be not so committed the constable is liable to an action for false imprisonment. It may be doubted whether so large powers of arrest without warrant have been wisely conferred upon the metropolitan police indiscriminately.

A FURTHER BATCH of amendments stood in the paper when the Land Transfer Bill was reported to the House of Lords on Thursday last. They were nearly all in the name of the Lord Chancellor. Lord HERSCHELL made one more attempt to throw the duty of registering on the purchaser and not on the vendor, and Lord MONTEAGLE moved for the extension of the real property clauses to Ireland. We append a summary of the more substantial of the Lord Chancellor's amendments, a considerable number being only verbal improvements and corrections.

Clause 4.-To add a power for the board, on first registration of a leasehold, to dispense with production of the actual lease or a copy thereof (required by section 11 of the Act of 1875), and to accept secondary evidence of its provisions in proper cases.

Clause 5.-To direct that the assignee (by operation of law or otherwise) of a person registered as tenant for life shall be registered as such-the registration not to impair the tenant for life's powers.

Clause 30.-A corresponding alteration of the provision as to bankruptcy of tenant for life.

Clause 36.-The rules are to contain directions as to when office fees may be remitted, and as to the notices in respect of deaths to be given to the Commissioners of Inland Revenue.

Clause 37, sub-clause 1.-Remodelled so as (1) to include a casus omissus-namely, where real estate is vested in a person which, if he had died intestate, would not pass to his heirsnamely, where such person took by descent, and the land would, therefore, go to the heirs of his ancestor, the purchaser. It should be observed that the beneficial enjoyment is not altered, only it is provided that in this case, too, the executor of the person last seised shall administer; and (2) to meet an argument (raised over a colonial Act) that where a man died without heirs (though leaving a will) the Act did not apply. The sub-clause now runs :-"Any real estate which would, but for this Act, on the death of any person intestate pass to his heirs, or, if he became entitled by descent, to the heirs of his ancestors, if any," &c. Sub-clauses 2 and 3 are transplanted into clause 41, from which we also note the puzzling, and, at best, unnecessary, words "pari passu wth his personal estate are to be excluded. Clause 47.-A curious little addition is made, shewing the extreme care needed to be taken when institutions are "abolished." For it appears that the borrowing powers of at least two Yorkshire towns require deposits of memorandums of all charges in the local Yorkshire registry. The local registry being (prospectively) abolished by this Act, those towns would have been in the rather distressing situation for a local body of being unable to borrow had not the present proviso been added, substituting the land registry for the local registry for this purpose.

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Clause 53, authorizing the employment of officers on behalf of applicants and other persons dealing with the office, has been elucidated. It will be remembered that it was thought this clause opened the door to the admission of a number of persons, not solicitors, to the privilege of transacting business in the registry. The amendment now confines the provision "officers" to examiners of title, surveyors, and other persons as provided by the rules.

A CORRESPONDENT, alluding to Mr. BRICKDALE's letter in the Times, as to the costs of registered dealings (ante, p. 563), points out that the true cost of registered dealings cannot be ascertained with completeness without an estimate of what those dealings will cost the country in the salaries of the officials employed to transact them. For instance, should the registry

(as it has done in former years) cost between £5,000 and £6,000 a year to maintain, 100 applications per annum would cost about £55 each. Even if this be so reduced as to bring the official disbursements down to £5 each, this, added to the lowest of Mr. BRICKDALE's instances-£2 12s. 8d.-makes a total to the nation and the landowner together (in computing which, by-the-bye, our correspondent omits to substract the office fee of 7s. 6d.) of £7 18s. 8d, as compared with £6, the total present costs for the same transaction. We need hardly point out, however, that in these calculations the most important item-namely, the average cost to the office of conducting dealings, which our correspondent conjecturally places at £5-is one which it is impossible to determine with certainty. The scale of fees issued by the present registry, which formed the basis of Mr. BRICKDALE's statistics, was intended, and doubtless was carefully calculated, to make the office self-supporting. The Queensland registry has 48,000 titles in it-the returns, largely from a uniform tariff of fees of 10s. for a mortgage and £1 for a transfer, exceed the expenses in all cases, independently of value, many times; the gross expenses, however, only amount to £4,230 1s. 4d. -rather less than 2s. per title per annum.

THE APPLICATION OF THE MAXIM VOLENTI NON
FIT INJURIA TO THE LAW OF NEGLIGENCE.
THE law of negligence is one of the most interesting and, as it
seems to us, the most obscure and uncertain branches of the law.
We made a little while ago some short observations on the recent
decision in Thomas v. Quartermaine, as briefly reported in the
daily papers. The full report of the case has since been pub-
lished (33 W. R. 555, 18 Q. B. D. 685). The judges in the
Court of Appeal delivered separate judgments, each of which will
be found to be full of interest, but perhaps more particularly that
of Bowen, L.J., which is a masterpiece of powerful and subtle
reasoning. The judgment of the Master of the Rolls will, we are
disposed to think, be found, upon careful consideration of the
matter, to be in truth, to a great extent, a corollary from views
expressed by him more full and elaborately in the well-known
case of Heaven v. Pender (11 Q. B. D. 503).

The general interest of the case does not depend so much on the particular point decided with regard to the construction of the Employers' Liability Act as on the discussion of general principles with regard to the law of negligence. The facts shortly were these: The plaintiff was employed at a brewery; upon the premises there was a vat full of scalding fluid, round which there was a rim about sixteen inches high. The plaintiff was attempting to pull a board from under another vat, and, the board coming away more suddenly than he expected, he fell into the first-mentioned vat. The county court judge found that there was a defect in the condition of the works at the defendants' brewery by reason of there being no sufficient fence to the cooling vat; that the condition of the vat was known to both the plaintiff and the defendant; and that the plaintiff had not been guilty of contributory negligence. It was held by the majority of the court (Bowen and Fry, L.JJ.) that the plaintiff could not maintain an action under the Employers' Liability Act, Lord Esher, M.R., dissenting. It was a question in the case whether that Act had placed the servant in the same position as, or in a better position than, anyone of the public invited on to the premises, but we rather understand the Master of the Rolls' judgment really to involve the proposition that, apart from the fact of his being a servant, the plaintiff would have had a cause of action at common law, and herein appears to us mainly to lie the interest of the conflict of views.

The view of the majority seems to be briefly this: Without a duty there can be no negligence, or, in other words, neglect of duty; the existence of the duty, and, consequently, of the negligence, depends on the circumstances with regard to the particular person towards whom the duty is alleged; there can be no duty upon the person who occupies premises to have such premises, or machinery, or other matters thereon in a particular condition, nor any breach of duty in not so having them, towards a free agent who, by the licence of the occupier, voluntarily comes upon such premises with as complete knowledge of the state of things that exists and any danger resulting therefrom as the occupier of the premises has himself.

The view which the Master of the Rolls takes comes, if we rightly understand it, to this: There is a general duty with regard to premises, machinery, or anything of which a person may have the management and control, to take ordinary care that the person or property of others lawfully coming upon, or into proximity to, such premises, machinery, or other matters shall not suffer damage by reason of the state thereof, and that knowledge by the party injured of such state is only an element in determining whether there has been contributory negligence. He says: "The duty, however, is that you are bound not to do anything negligently so to hurt a person near you, and the whole duty arises from the knowledge of that proximity. Whether the negligence is your personal act or arises from using your property in a particular way, the rule equally applies, and you must so use your personal powers or property as not to injure any other person if, by the exercise of reasonable care, you can avoid doing so." This practically reduces the whole question in these cases to two elements-viz., negligence and contributory negligence.

It appears to us that the subject is one involving much difficulty, both practical and theoretical, in either point of view. A great deal of the theoretical difficulty arises from the fact that, owing to certain natural human tendencies, which are, perhaps, inevitable, in many cases the findings of juries on the question whether there has been negligence or contributory negligence are untrustworthy. If juries could be trusted to take a really fair and dispassionate view, in many cases this nice question as to the existence of any, and, if so, what, duty would be rendered unnecessary by the fact that the existence of negligence would be immediately negatived. The truth is that in these cases the questions whether there was a duty and whether there was negligence or a breach of duty may often be really interchangeable. If the question whether there was a duty is framed so as to state exactly what the duty suggested is, it becomes obvious that practically this is so. The question, whether there was a duty under the circumstances of the particular case to do or not to do a particular thing, comes to much the same thing as the question, whether it was negligent under all the circumstances of the particular case to do or not to do a particular thing. Judges have really distinguished between the two questions because juries cannot be altogether trusted, but there is always a difficulty about the distinction. The Master of the Rolls is pre-eminent among judges for his belief in juries and the jury system, and no judge is more careful so to frame his general propositions of law as to give the fullest operation to the functions of the jury man, and we cannot help thinking that there is some relation between his belief in juries and his way of looking at these questions of negligence. It will be obvious to anyone who carefully reads his judgments in Heaven v. Pender and the case we are now discussing, how great is their tendency to put the question in these cases unrestrictedly into the hands of the jury. Given the general definition of the duty which he propounds, it simply becomes a question for the jury whether the degree of care he describes as ordinary care has been used by the defendant, and whether, if not, there was contributory negligence.

One great difficulty in relation to the law of tort which is particularly exemplified in the law of negligence is that it must to a great extent be founded on moral duty, but that the ideas of legal duty and moral duty, nevertheless, are not and cannot be coincident. The limits of moral duty are, in the nature of things, shifting and uncertain; it is the necessary tendency of the ideas of moral duty to be in a state of flux, and ever enlarging their borders. And, more than that, at any given time it is hardly possible to assign exact limits to a moral duty. In everyday life it is constantly being recognized that moral and legal duty are not coincident. An honest man will pay a debt barred by the Statute of Limitations. A humane man will take many precautions for the benefit of his workmen or servants which clearly he could not be compelled by common law to take. No one will deny that it is a moral duty to be humane. The function of law in this respect is to determine to what extent moral and legal duty ought to be coincident-i.e., in what cases, and to what extent, the force of the community ought to enforce the performance of moral duty. There is an obvious distinction between justice and benevolence. The law has to say what is just as between man and man. A juryman will be apt in many of these cases to make the precepts of benevolence the measure of

justice, as against others. The vice, as we venture to think, of the Master of the Rolls' view of the subject of negligence is that the result of it would be, if logically carried out in practice, a failure to distinguish sufficiently between the moral duty of a humane or scrupulous man to use precautions to prevent injury to the person or property of others, and the legal duty that ought to be enforced against all men. His judgment in the case of Heaven v. Pender, if followed, would, as we conceive, have been a perfectly new departure in the law of negligence. We imagine that it will be found that in the previous cases on the subject the principle has always been recognized that there must be special circumstances on which the duty to take care towards the particular person may be founded. Something beyond the mere fact that the defendant knew, or ought to have known if he reflected, that in the absence of some precaution a person coming into proximity to the machinery, or whatever it might be that caused the damage, might be injured. Thus, for instance, to persons using an adjoining highway, or in the lawful exercise of a right of way over private land, there is a duty on the part of the occupier of premises so to use them as not to endanger the safety of such persons. To persons invited on to premises or licensees there is a duty not to lay a trap for them, not to allow them, in ignorance or with incomplete knowledge, to expose themselves to risks the nature of which the occupier of the premises either knew or ought to have known. It would be impossible to exhaust by one or two formula the whole of the law on this subject, but we think it will be found that in all the cases some special circumstances existed beyond what would be necessary to satisfy the proposition laid down by the Master of the Rolls in Heaven v. Pender. At any rate, we cannot think that there is any authority for the proposition that a person is responsible as for negligence in respect of anything on his premises constituting a danger which is as well known or as obvious to the person whom he has invited on to his premises as it is to himself.

But, although we cannot help thinking that, upon the authorities and the general principles which have always been supposed to govern the law of negligence, the decision of the majority was correct, we think every one will be painfully conscious, after perusing the judgments of the Court of Appeal in the cases we have mentioned above, that there are great logical and practical difficulties in connection with this branch of the law, whether it be regarded from the point of view adopted by the majority or that adopted by the Master of the Rolls, and we can conceive that, to some minds, it may appear that after all the broader view of the latter, by which these questions are really made almost entirely questions of fact, is the sounder and more logical.

CONVEYANCE AND REGISTRATION OF LAND
TITLES IN PRUSSIA.

other German States.

and introduced so nearly at the same moment; the Prussian Registry of Title was established in 1872, and was very soon adopted by the The most interesting portion of the report at the present juncture is at the end, where a few notes are collected as to the processes employed to get land on to the register in the first instance - first registration which appears, by-the-bye, to have been effected with guaranteed title in all cases. The proof of title admitted was various.

ment.

1. Sale by judicial auction. Apparently any vendor could sell by judicial auction on producing a certificate of possession given by a local authority, coupled with a certain amount of public advertise2. Certificate of ownership. How obtainable is not specified-probably from the existing deed registrars, after search of some kind. 3. Evidence of possession, either (a.) For twenty-five years simply, or

(b.) For ten years at least, plus a legal commencement of such possession.

(c.) For ten years by the applicant and his predecessor together. 4. Evidence of title in the ordinary sense.

The other more notable points of the system mentioned in the

report are these. We give them without comment:

quent registration. The act of transfer consists in a verbal or Transfers consist of two parts-an act of transfer, and its subsewritten conveyance by the registered proprietor and an acceptance by the transferee. Where the parties can attend at the registry (nearly every market town has its registry) the process is verbal; where the written form is used it must be properly verified and authenticated.

transferee.

Devolutions do not require registration until the new owner desires to transfer or charge the land; then he must be registered. Notice of prior unregistered rights does not affect the title of a registered Adverse possession gives no title as against the registered proprietor. Notes of temporary matters, such as intended sales and mortgages, lis pendens, &c., corresponding to our "caution and "notice system, can also be entered on the register. Easements and other rights to which property is subject must be registered in order to affect third parties.

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also given of certain rights which shall not be affected by registration, A list (curiously similar to section 18 of the Land Transfer Act) is they are all either notorious or trivial matters.

A very distinctive feature of the system is the land debenture, which we are informed is used for large sums mostly, the ancient mortgage or registered charge being still kept on foot and largely used for small sums. Mortgages are given constantly for less than £1; the fees being less than 1s. in such cases.

The unit of registration appears to be the parcel; each parcel has a separate sheet in the register, but means appear to exist for collecting the parcels when several are in the owership of one proprietor. The register is only accessible to persons interested. It appears that the oral instructions of applicants are readily received by the registrars, who thereupon, in ordinary cases, make the necessary alterations in the registers while the parties wait.

Trust estates can be registered on production of the certificate of officials specially charged with their supervision.

Mr. Scott refers the legal expert to Herr Bahlmann's "Das Preussische Grundbuch-recht" (Berlin, 1881), 700 pages, which he has himself utilized for the purposes of this report.

THE report by Mr. C. S. Scott, Secretary to her Majesty's Embassy The report concludes with some of the specimen forms of registers at Berlin, on this subject has just appeared. The following observa-appended to the original statute, with translations of the various tions are partly extracted from the report and partly derived from entries. independent sources. We may congratulate Mr. Scott upon having very successfully achieved a difficult task. As he himself says, to supply information in such detail as would admit of thoroughly testing the applicability of the Prussian system to England or other countries would require more leisure and technical knowledge of the subject than can be expected from a member of the Embassy; but for information of a general character given in a concise form the report leaves little or nothing to be desired.

An instance, however, of the small pitfalls which the unprofessional person is exposed to in dealing with technical subjects occurs in the translation of the first paragraph of the Prussian Statute of 1872. The report states that a conveyance followed by registration is necessary "In cases where land changes hands in consequence of voluntary disposal." This, to an English lawyer, would seem to apply only to cases of gift, as opposed to dealings for value, but the word translated (with literal accuracy) "voluntary disposal" means really a disposal by act of the parties as opposed to a devolution by act or operation of law-i.e., a sale or mortgage as against a succession or bankruptcy.

There is really so very little difference between the main principles of the Prussian registry of title and the system adopted by our own Land Transfer Act and the Torrens Act that it is needless to set out in detail the various provisions of the former sent over by Mr. Scott The curious thing is that the two systems should have been worked out independently of each other (as appears to have been the case)

CORRESPONDENCE.

COSTS UNDER THE LAND TRANSFER BILL.

[To the Editor of the Solicitors' Journal.] Sir,-The table set out in Mr. Brickdale's letter (SOLICITORS JOURNAL of the 18th ult.) showing the cost of the registration system as compared with the cost of the present practice seems hardly complete.

The expenses of the Land Register Office are between £5,000 and £6,000 a year. If there are one hundred applications for registration in the course of the year the expenses would average about £55 each.

Taking the first instance in the table, the total cost of registering a sale, &c., of land under £100 in value, including a fee to the solicitor, is put at £2 18g. 8d. Add to this, however, say £5—a moderate sum- -for share of establishment charges, the total would be £7 18s. 8d., as compared with £6, the amount of present costs.

I have reason to think that the system of the Conveyancing Act, 1881, and the scale charges is not generally known, and that it has not had a sufficient trial. In all probability, if allowed to continue, it would be found to effect, in time, both simplicity of title and as much expedition in the transfer of land as one need wish for. E. H.

CASES OF THE WEEK.

Re PLATT-C. A. No. 2, 5th July.

LUNACY-PETITION UNDER TRUSTEE RELIEF ACT-JURISDICTION-JUDICATURE ACT, 1873, s. 51.

that Act, and in the matter of the Trustee Acts.

This was a petition by the personal representative of a deceased person of unsound mind, not so found by inquisition, for the payment out of court of a fund which had been paid in under the Trustee Relief Act to the credit of the deceased. The petition was entitled in the matter of THE COURT (COTTON, BOWEN, and FRY, L.JJ.) at first felt some doubt whether they had any original jurisdiction under the Trustee Relief Act, but on referring to the request addressed to them some years since by the Lord Chancellor (vide 20 SOLICITORS' JOURNAL, 45) to act as additional judges of the Chancery Division, it was found that it was not limited to petitions entitled in lunacy and the matter of the Trustee Acts, but that it extended to all applications in lunacy which required also an exercise of the jurisdiction of the Chancery Division. The Court accordingly made the order asked for.-COUNSEL, F. Thompson. SOLICITOR, R. C. Adams Beck.

Re THE BARANGAH OIL REFINING CO.-C. A. No. 2, 30th June. COMPANY-WINDING UP-CONTRIBUTORY-CONTRACT TO TAKE FULLY PAID UP SHARES-OMISSION TO REGISTER CONTRACT-COMPANIES ACT, 1862, S. 23-COMPANIES ACT, 1867, s. 25.

This was an appeal from a decision of North, J. (ante, p. 46). The question was whether A., a former director of the company, could be made a contributory in respect of unpaid shares, he having agreed to take fully paid-up shares. At a meeting of the board of directors, held on the 19th of June, 1883, at which A. was present, it was resolved, "That 500 fully paid up shares in the company be voted and presented to A. in recognition of his services on behalf of the company in undertaking two journeys to India, subject to confirmation at the next general meeting of the shareholders." At another meeting of the board, on the 28th of August, 1883, it was resolved "That the board further vote A., seventy-five fully paid-up shares, subject to confirmation of the shareholders at the next general meeting, for the additional assistance he has rendered the company." The next general meeting of the company was held on the 24th of October, 1883, and it was then resolved by the shareholders "That a sum of £2,875 be voted to A., which he agreed to take in 575 fully paid-up shares." A. was present at this meeting and assented to the resolution. No proper share register was kept by the company, but his name was entered in the shareholders' ledger as the holder of 500 of the 575 shares. He afterwards transferred to other persons 260 of the 500 shares, and he and the secretary of the company signed certificates for 500 of the shares. North, J., held that A. had agreed to take the 575 shares, and that he must be placed on the list of contributories in respect of the 315 which remained in his name, and that, no contract for the issue of the shares as fully paid up having been registered in compliance with section 25 of the Companies Act, 1867, the shares must be treated as having had nothing paid in respect of them, and that the £2,875 which was voted to A. could not be treated as an independent debt, and set off against the corresponding sum which was due from him upon the shares, so as to make the shares fully paid up. On the hearing of the appeal the court allowed fresh evidence to be adduced, and this new evidence satisfied the court that, when A. executed the transfers, the numbers of the shares were not filled in, and that he believed that he was transferring some other shares which had been previously allotted to him; that the numbers were wrongly filled in by the mistake of a clerk of the company; that when A. signed the certificates he did so only with the intention of taking the shares when they should be duly allotted to him as, in fact, fully paid up in compliance with section 25; and that his name was entered in the company's books as the holder of the shares without his knowledge or assent.

THE COURT (COTTON, BOWEN, and FRY, L.JJ.) allowed the appeal. COTTON, L.J., said that if, independently of the resolution of the 24th of October, which voted the 575 shares to A., there had been a debt due to him from the company, then, in accordance both with principle and the decided cases, the set-off of that debt against the amount payable by him in respect of the shares might have been considered payment of the shares, if the liability of the company to him existing antecedently to the resolution had been of sufficient amount. But it would be wrong to apply that principle to a case in which the debt from the company was created by the same resolution which voted the shares to him as fully paid up. It would be, in effect, an allotment of shares as fully paid up, without complying with section 25 of the Companies Act, 1867. In the present case no contract for the issue of the 575 shares as fully paid up was ever registered. It was, however, argued that, under section 23 of the Companies Act, 1862, A. must be considered a contributory, because he had agreed to become a member of the company, and his name was on the register of shareholders. In his lordship's opinion it must be shewn either that, with his assent, his name had been entered on the register as a member of the company, or that he had entered into a contract with the company to become a member, of which the liquidator was entitled

to compel specific performance, so that A.'s name could be entered on the register of members even without his consent. Was there any such take £2,875 in fully paid-up shares. The shares in respect of which A. had been registered were not, in the eye of the law, paid up; whoever took them would be liable to pay the full amount of them. It was argued that, as between the company and A.. they must be deemed to be fully paid up. But that was not so. The contract referred to shares which, in law, were fully paid up. It was said that it was for A. to make them fully paid up, by registering a contract in compliance with section 25. In his lordship's opinion section 25 did not impose on either party in particular the duty of registering the contract. The contract must be registered before the issue of the shares, or the shares must be treated as not paid at all. But it was rather for those who sought to enforce a contract to do what was necessary to its completion. The case was distinguishable from Blyth's case (4 Ch. D. 140), which had been relied on. There the person who had agreed to take the shares had allowed his name to be transferring them. That had no bearing on the present case. entered on the register of the company, and had dealt with the shares by under no obligation to register a contract for the issue of the shares as A. was fully paid up, but, unless such a contract was registered, the shares could not be so issued. A court of equity would not compel a man specifically him by taking that which would only impose a liability on him, and the to perform a contract which, on the face, purported to confer a benefit on company could never allege that they had been ready and willing to give A. fully paid-up shares. Did, then, A. ever assent to having the shares registered in his name? He might, if he had pleased, have assented to these particular shares being registered in his name. appeared to be a strong prima facie case against him, leading to the inference that he intended to take these particular shares, though they were not, in fact, fully paid up. But the evidence satisfied his lordship that A. had never intended to deal with these particular shares which were registered in his name, and had never assented to their being so registered. His lordship added that it had been argued that section 25 applied only in the case of a winding up. That was not so; it was of general application. BowEN, L.J., concurred. Unexplained, the books of the company raised a presumption against A., but they were only prima facie evidence. The notion that a director of a company was conclusively bound by entries in the company's books had no foundation at fully paid up, for the agreement so to issue them had not been registered, law or in equity. FRY, L.J., said that the shares could not be treated as and the contemporaneous agreement to give A. an equivalent sum of money could not be treated as payment of the shares in cash. But then arose the question whether the shares were ever "held" by A., for section 23 of the Act of 1862, and the question was whether A. ever was section 25 applied only to shares "issued and held." That turned upon a "member" of the company, or had agreed to become a member, in respect of these shares. His original agreement was not to take shares of any other description than fully paid-up shares, and the evidence taken altogether did not shew any assent by A. to a departure from that agreement.-COUNSEL, Buckley, Q.C., and Stewart Smith; Maclean, Q.C., and Swinfen Eady. SOLICITORS, Rooks & Co.; Milton Bradford.

contract? The contract into which A. had entered was that he would

At first there

THE LONDON AND YORKSHIRE BANK (LIM.) v. T. E. PRITT.—
Chitty, J., 1st July.
RESTRAINT ON TRADE-AGREEMENT EXTRACTED FROM CONDITION IN BOND-
INJUNCTION.

In this case the question arose whether an agreement could be gathered from the condition of a bond, or whether the sole remedy against breach by the obligor was a monetary penalty. The bond in question was given in a sum of £1,000 by the defendant, a bank manager, to the plaintiffs, his employers, and the condition was that the defendant should not, during the space of twelve calendar months next after quitting the plaintiffs' employ, take a banking appointment within five miles of the plaintiffs' bank. The defendant having quitted the plaintiffs' employ, and accepted a post at a neighbouring bank, the plaintiffs moved for an interim injunction. The defendant submitted that the plaintiffs could only sue for damages.

CHITTY, J., said that when the circumstances under which the bond was executed, and also the intention of the parties were regarded, the fair way of looking at the matter was to take the agreement as existing in the condition of the bond, and to extract it out of the bond. Authority for such a course could be found in the cases of Gravely v. Bernard (22 W. R. 891, 18 Eq. 518) and Howard v. Woodward (13 W. R. 132). He granted the injunction as asked.-COUNSEL, Romer, Q.C., and Carson; Maclean, Q.C., and Upjohn. SOLICITORS, Bompas, Bischoff, Dodgson, & Coxe ; Torr, Janeways, & Co.

Re SIMPSON'S TRUSTS-North, J., 2nd July. APPOINTMENT OF NEW TRUSTEES-CONSTRUCTIVE TRUSTEESHIP-JURISDICTION-DISPENSING WITH SERVICE OF PETITION-TRUSTEE ACT, 1850. This was a petition for the appointment of trustees of a will, and for an order vesting in the trustees to be appointed the right to call for a transfer of a sum of Consols of which the trust property consisted. The testator did not by his will appoint any trustee. The stock stood in the name of his executor. The executor had died, and no representation had been taken out to him.

NORTH, J., held, on the authority of Re Davis' Trusts (12 Eq. 214), that there was jurisdiction to appoint trustees. The executor having received the testator's personal estate, and having paid his debts and legacies, became a trustee of the fund. His lordship also held that it was

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